OR: Courthouse entry search policy was subject to arbitrary and nonstandardized application in violation of state constitution

Meth found in a cigarette package during a courthouse security search was invalid because the search policy was subject to arbitrary and nonstandardized application in violation of state constitution. State v. Snow, 247 Ore. App. 497, 268 P.3d 802 (2011):

Defendant argues that the policy fails to meet the third criterion for a valid administrative search—that it be “designed and systematically administered” to control the discretion of those implementing it. Atkinson, 298 Ore. at 10. “The purpose of that requirement is to protect against arbitrariness and to ensure that individuals or particular items of property are not improperly singled out for special attention.” Weber, 184 Ore. App. at 436 (citation omitted).

Order 94-5 permits “searches of an individual’s person and carried item[s]” and requires that “any person” entering the courthouse “submit to a search of their person and a search of their bags, briefcases, valises, and hand-carried items.” That policy grants wide latitude to an officer to decide both who to search and the scope of a search. In other words, the policy does not specify which persons an officer must search—for instance, by requiring that every person’s closed containers be searched—nor does the policy specify how intrusive any given search may be—for instance, by requiring that closed containers be examined only by x-ray as opposed to a visual search. See, e.g., Department of Justice v. Spring, 201 Ore. App. 367, 373, 120 P3d 1 (2005), rev den, 340 Ore. 483, 135 P.3d 318 (2006) (statute authorizing DNA testing to establish paternity adequately limited discretion where it required every person who denied paternity to submit to a test); Coleman, 196 Ore. App. at 130 (police waiting room policy adequately limited discretion where it required “every person” to be searched and prohibited searches of closed containers); Weber, 184 Ore. App. at 436-37 (school drug testing policy adequately limited discretion where students were selected randomly and testing procedures were standardized). Instead, the policy would permit a security officer searching for weapons to subject one person to a metal detector and x-ray examination, while subjecting another to a full strip search. We readily conclude that that policy fails to limit the discretion of those conducting a search under its authority. See, e.g., State v. Eldridge, 207 Ore. App. 337, 342-43, 142 P3d 82 (2006) (police inventory policy did not adequately limit discretion because it lacked standardized criteria or procedures regarding the scope of each inventory); Haney, 195 Ore. App. at 280-81 (assuming that policy authorized officer to search car after accident, it did not adequately limit officer discretion because it provided no guidelines on the physical scope of searches); Willhite, 110 Ore. App. at 573-74 (although police inventory policy specified that every towed vehicle must be inventoried, and specified a standardized procedure for removing property, it was nonetheless defective because “it [was] so general that an officer [could] look everywhere he [could] think of”). Thus, the search in this case—carried out pursuant to that policy—violated Article I, section 9.